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2014 Supreme(All) 598
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
M/s. GODWIN CONSTRUCTION PVT. LTD. ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 22245 of 2014, decided on 17th April, 2014)
Counsel :
K.R. Sirohi and Yogesh Kumar Singh for the Petitioner; C.S.C. for the Respondents.
Headnote:(Indian) Stamp Act, 1899—Sections 33, 35(b), 2(16) and 47-A—Transfer of Property Act, 1882—Section 105—Easement Act, 1882—Section 52—Licence—Licence deed—Determination of nature—Payment of stamp duty—Whether from terms and conditions of agreement in question, the document can be said to be a mere “deed of licence” or it is a “lease-deed”—Allegedly petitioner obtained possession of land in question only as a licensee and therefore, a deed of licence was executed—Terminology as used by parties not exclusive to determine the nature of instrument but it is the substance of contents of documents which would be relevant—Definition of ‘Lease’ under 1899 Act is a bit wider than what it is provided under T.P. Act—A licence is a right granted by a competent authority or owner of premises to carry on business or to do an act which without such licence would be illegal—“Licence” generally provides to the Licensee less rights in real estate than a “Lease”—Cost of land is required to be deposited by petitioner, though in instalments—Once cost of land is paid, concept of licence would immediately disappear—Kind of interest created with petitioner not a mere licence—MDA retains no right of possession and control over property provided to petitioner—Right to sell property vested with petitioner—Held, that instrument in question not only a ‘licence deed’—It is camouflage to a real ‘lease-deed’ and has been titled as ‘licence-deed’, to evade stamp duty—Section 33(1) also held applicable. [Paras 18 to 53]
Hon’ble Sudhir Agarwal, J.—Learned Standing Counsel fairly stated that the issue raised in this case is a pure question of law which has to be determined by construction of licence deed, (Annexure 2 to the writ petition), so as to find out whether it results in grant of a “Lease” in the garb of a “Deed of Licence” or, in fact, it is a “Licence” only and, therefore, the writ petition may be heard finally at this stage under the Rules of the Court, as he does not propose to file any counter-affidavit but would address this Court from the documents available on record as also the statutory provisions and various authorities on the subject. In these circumstances, with the consent of learned counsels, I proceed to hear this matter so as to decide finally at this stage under the Rules of the Court.
2. Heard Sri K.R.Sirohi, Senior Advocate assisted by Sri Yogesh Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
3. The writ petition is directed against order dated 11.12.2013 passed by respondent No. 2 in Stamp Revision No. 26/2008-09/Meerut (M/s. Godwin Construction v. State), under Section 56, Indian Stamp Act, 1899 (hereinafter referred to as “Act, 1899”) as well as order dated 20.2.2008 passed by respondent No. 3 in Case No. 94/V 358/02-03 (State v. M/s. Godwin Construction) under Section 33(4) of Act, 1899 (Annexures 10 and 9 to the writ petition).
4. Following two questions have been raised:
(a) Whether from terms and conditions of agreement in question, the document can be said to be a mere “deed of licence” or it is a “lease-deed”?
(b) Whether Section 33 of Act, 1899, is applicable in the case in hand?
5. Before answering aforesaid questions, it would be appropriate to have a bird eye view to the relevant facts and contents of documents relevant in the matter.
6. The petitioner is a Company, engaged in construction activities and development of land etc.. Meerut Development Authority (hereinafter referred to as “MDA”) acquired certain land under Land Acquisition Act for its development as residential-cum-commercial scheme, which was subsequently termed as “Ganga Nagar Housing Scheme”. The Scheme sought to be executed in private partnership as per U.P. Government’s Urban Residential Scheme, 1995 by allotment of land to developers and contractors. For the land in question, measuring 44,145.79 sq. meters, an auction was held on 9.11.2001. The petitioner was the highest bidder. Therefore, the land was allotted to him in the aforesaid auction @ Rs. 860/- per sq. meter. The alleged licence deed was executed between MDA and petitioner on 19.2.2002. The relevant part of said licence deed reads as under:
“And whereas Second Party has been the highest bidder in Tender Cum Auction dated 9.11.2001, at the rate of Rs. 860/- per sq. meter. Hence this agreement is being executed and all the terms and conditions, tender, Payment Schedule, and other relevant documents & also resolution of party No. 2 are being made part of this agreement. The parties shall remain bound with the same. The party of the Second part has so far only deposited an amount of Rs. 75,93,076/- which is uptodate as per Payment Schedule, as agreed upon in terms of Tender Cum Auction. So possession of land area measuring 44,145.79 sq.mt. as licensee is being given today as per annexed Site Plan and the stipulated period starts today i.e. Feb. 19. The Licensee will not deliver possession to his nominee without getting the Deed executed by M.D.A. in favour of nominee. A total amount Rs. 45,55,846/- on total salable area of the transferable area shall be charged from all the allottees which shall be recovered from final allottees in proportionate to their salable areas, but this amount will be realized through the licensee and he will be responsible to deposit it.” (emphasis added)
7. The document appended to the said deed shows that total cost of property measuring 44,145.79 sq.meters was shown a
